IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Keith M. O’Neal, Sr.,

Petitioner

 v.

Warden, Ross Correctional Institution,

Respondent

:

:

:

:

:

Civil Action 2:10-cv-01113

Judge Graham

Magistrate Judge Abel

Order

On January 13, 2012, this court entered an order adopting the report and

recommendation of the Magistrate Judge (Doc. 15) which recommended that this action

be dismissed without prejudice for failure to exhaust state remedies, and further

recommended the denial of petitioner’s motion for a stay (Doc. 10). On January 19,

2012, petitioner filed a motion for reconsideration of that order, claiming that he never

received the report and recommendation. Petitioner was permitted additional time to

file objections to the report and recommendation. On February 13, 2012, petitioner filed

a second motion for reconsideration. arguing that the Magistrate Judge erred in

recommending the denial of his motion to stay this action while he exhausts his claims

in state court. Petitioner maintains that he should be granted a stay because he is not

familiar with court procedure and he does not have the freedom necessary or expertise

needed. He also contends that the prison law library is often unavailable without

notice.

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On December 15, 2011, the Magistrate Judge granted petitioner’s motion to

amend his petition to include two additional claims pending in the Muskingum County

Court of Common Pleas. On June 25, 2010, petitioner filed a motion to correct invalid

sentence, and on October 4, 2010, petitioner filed a motion to vacate conviction and

sentence. See doc. 15. Amendment of O’Neal’s petition created a “mixed petition,”

that is a petition that presents both exhausted and unexhausted habeas corpus claims. 

Before a federal habeas court may grant relief, a state prisoner must exhaust his

available remedies in the state courts. Castille v. Peoples, 489 U.S. 346, 349 (1989);

Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir.1993). If a habeas petitioner has the right

under state law to raise a claim by any available procedure, he has not exhausted that

claim. 28 U.S.C. § 2254(b), (c). Moreover, a constitutional claim for relief must be

presented to the state's highest court in order to satisfy the exhaustion requirement.

O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th

Cir. 1990). Where alternative state remedies are available to consider the same claim,

exhaustion of one of these remedies is all that is necessary. Petitioner, however, sought

a stay of this action to allow him to exhaust his state court remedies. 

The Magistrate Judge correctly concluded that a stay of the proceedings would

not be appropriate. In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme

Court held,

[A] stay and abeyance is only appropriate when the district court

determines there was good cause for the petitioner's failure to exhaust his

claims first in state court. Moreover, even if a petitioner had good cause

for that failure, the district court would abuse its discretion if it were to

grant him a stay when his unexhausted claims are plainly meritless. Cf. 28

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U.S.C. § 2254(b) (2) (“An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State”).

Id. at 277.

The record provides no basis to conclude that petitioner's claims are potentially

meritorious. In his June 25, 2010, motion to correct invalid sentence, petitioner argues

that his current sentence is invalid because the jury forms did not support the sentence

imposed by the trial court. According to petitioner, Ohio Revised Code § 2945.75(A)(2)

requires the jury verdict forms to state the degree of the offense to which the defendant

has been found guilty or to state the additional elements present to justify sentencing

the defendant a greater degree than that of the offense charge. See doc. 8-4 at 84-87. In

his October 4, 2010, motion to vacate conviction and sentence, petitioner also argues

that the jury verdict forms failed to meet the statutory requirements of Ohio Revised

Code § 2945.75(A)(2) resulting in the violation of his rights under the Fifth and

Fourteenth Amendments. See doc. 8-4 at 95-97.

Petitioner’s objections to the trial court’s alleged errors of state law are errors for

which “federal habeas corpus relief does not lie.” Estelle v. McGuire, 502 U.S. 62, 67, 112

(1991). To be cognizable in federal habeas corpus, there must be constitutional errors

that were material to the outcome of the case and resulted in a denial of fundamental

fairness to the petitioner. Jameson v. Wainwright, 719 F.2d 959 (6th Cir. 1983). Habeas

relief cannot be granted merely because an instruction deviates from the standard state

law jury instructions or even if the instruction is “allegedly incorrect under state law.”

502 U.S. at 71–72. The only question for the court is “whether the ailing instruction by

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itself so infected the entire trial that the resulting conviction violates due process.” Id.

at 72 (quotation marks omitted). Furthermore, “[a]n omission, or an incomplete

instruction, is less likely to be prejudicial than a misstatement of the law,” Henderson v.

Kibbe, 431 U.S. 145, 155 (1977). Here, petitioner has not identified any material errors.

Even if the jury forms failed to meet the statutory requirements of Ohio Revised Code §

2945.75(A)(2), the alleged error did result in a denial of fundamental fairness to

petitioner.

After considering the arguments made in petitioner’s motions for

reconsideration, the court reaffirms its previous adoption of the Report and

Recommendation. The court also concludes that the previous order dismissing this

action without prejudice due to petitioner’s failure to exhaust all of his state remedies

and denying a stay was correct. Petitioner’s motions for reconsideration (Docs. 18 and

22) are hereby denied, and the court reaffirms the previous dismissal of the above

action without prejudice. 

Date: February 22, 2012 s/James L. Graham 

 James L. Graham

 United States District Judge

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